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TRANSCRIPT
Governing Health Controversies Through the Judiciary
Leticia Morales IHSP/Faculty of Law, McGill University
Draft only - Please don’t cite or quote without permission
!The great thing about facts is that you don’t have to ponder
whether they’re desirable or not.
Jo Nesbø, Nemesis.
!Introduction
Courts are increasingly called upon to arbitrate in public health controversies
that pitch different stakeholders against each other (Yamin & Gloppen, 2011).
Judicial intervention in such cases requires courts to take a stance on public
health policy. To illustrate, consider three recent Canadian cases.
In 2011 the Supreme Court of Canada found in the case known as PHS
that a person’s rights to life, liberty and security under s. 7 of the Charter of
Rights and Freedoms is violated where policy threatens the health and bodily
integrity of intravenous drug users by refusing to legislate for safe injection
sites. The Court stated in PHS that government should grant approval to a 1
supervised injection site that will markedly decrease the risk of death and
1
Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 SCR 1
134 (PHS), para 93.
disease, with little or no evidence that it will have a negative impact on public
safety.
In Bedford, the Canadian Supreme Court decided unanimously that the
criminal prohibitions on “bawdy-houses”, living on the avails of prostitution, and
communicating for the purpose of prostitution do not merely impose constraints
on sex workers. Rather, “by imposing dangerous conditions on prostitution, they
prevent people engaged in a risky – but legal – activity from taking steps to
protect themselves from the risks”. Rejecting the Attorney General’s call for 2
deference to government policy decisions (on the grounds that a positive
decision would open up the floodgates for similar claims) and instead redressing
the harms of government (in)action through the interpretation of s. 7 of the
Charter, the Supreme Court acknowledged the need for a legal framework that
promotes and protects sex workers’ health in Canada (Chu and Glass, 2013).
Finally, in 2013 the Court of Appeal for British Columbia was asked to
reconsider the constitutionality of the Criminal Code provisions against suicide
and euthanasia under both s. 7 and s. 15 of the Charter in Carter. Ms. Carter 3
and Ms. Taylor, both suffering from an untreatable progressive medical
condition, challenged the constitutionality of s. 241(b), which prohibits a third
party assisting in the suicide attempt of a person. The plaintiffs initially
2
Canada (Attorney General) v. Bedford 2013 SCC 72, [2013] 3 SCR 1101, para. 60.2
Carter v. Canada (Attorney General), 2013 BCCA 435. Previously, in Rodriguez v. British Co3 -lumbia (Attorney General) [1993] 3 S.C.R. 519, the Supreme Court of Canada found that provi-sion 241(b) of the Criminal Code (prohibition of assisted suicide and imprisonment) not to in-fringe certain rights under the Canadian Charter of Rights and Freedoms.
succeeded in the lower court, but after an appeal by the Attorney General of
Canada, the Court of Appeal in a majority ruling found “binding precedent”
required the trail judge to apply Rodriguez. At the same time, the Court of 4
Appeal state that, should the Supreme Court revisit its holding in Rodriguez, it
should consider using the remedy of a ‘constitutional exemption’ for individuals
on whom an otherwise sound law “has an extraordinary and even cruel effect.”
Explicitly addressing legislative intent, Chief Justice Finch argued that
“accepting that s. 241 is directed to the interest of the vulnerable, a
constitutional exemption for those who are clear-minded, supported in their life
expectancy by medical opinion, rational and without outside influence, might
not undermine the intention of the legislation.” 5
What these three cases – and many more in other jurisdictions – have in
common is that judges are interfering with the public health decisions of
legislators and other policy-makers. In doing so, courts are said to rapidly face
the so-called “judicial legitimacy problem” (Syrett, 2013). One type of 6
3
Carter 1993: 4. “The trial judge carried out a lengthy review of the history of the impugned 4
provisions, expert opinion evidence on medical ethics and medical end-of-life practices, evidence from other jurisdictions, and the feasibility of safeguards for physician-assisted suicide. She con-cluded that safeguards could be put into place to protect against the risks associated with physician-assisted dying; that the evidence did not support an increased risk for elderly individ-uals; and that the risks inherent in permitting physician-assisted death could be ‘very substan-tially minimized through a carefully-designed system imposing stringent limits that are scrupu-lously monitored and enforced’.”
Carter 2013, Chief Justice Finch dissenting, p. 5.5
See Bickel 1962: 16-18 for an early characterization of this problem as “countermajority diffi6 -culty”. BICKEL, A. (1962). The Least Dangerous Branch: The Supreme Court at the Bar of Politics. New Haven: Yale University Press.
legitimacy problem is familiar from the critique of Waldron (1999, 2006) and
Bellamy (2007), maintaining that judicial review in particular is undemocratic.
But another legitimacy problem is based on the alleged incapacity of judges to
fully appreciate and address questions that require a particular type of
expertise. Public health is indeed one of those areas in which expertise appears
to play a large role, thus raising the question whether judicial intervention is
justified.
!Persistent Disagreements in Public Health
Controversies are persistent in public health. Public health measures and
interventions, such as the examples mentioned in the introduction, pitch citizens
against each other as well as against government and other public regulators.
Public health is an inherently political activity (Coggon, 2013), subject to what
Jeremy Waldron has aptly termed the “circumstances of politics”: the need to
reach a decision under conditions of persistent disagreement (Waldron, 1999:
102).
There a several reasons why disagreement in public health matters
persists. One of the main reasons is simply a matter of competing interests:
public health interventions are notorious for imposing broad (albeit in many
cases small) costs in return for gains to a relatively circumscribed group of
beneficiaries (Holland, 2007). The restrictions imposed on some for the benefit
of others in some cases cause consternation, protest and at times even outright
disobedience. Safe injection sites may be congenial to the health and safety of
4
drug users, but will also negatively affect the living environment or indeed
housing prices for those in whose backyard the scheme is implemented.
Balancing interests is a difficult matter at the best of times, and more so when
the competing interests at stake are reasonable (Waldron, 1989).
Of course, people equally vehemently disagree when it concerns the values
or foundational principles underpinning public health policy. While promoting 7
the health and safety of sex workers is again a laudable goal, many believe any
form of relaxing prohibitions on selling (and buying) sex is equivalent to
accepting a denigrating and exploitative practice. Similar value conflicts arise
with respect to end-of-life decisions: here opposing parties refer to a host of
attractive principles – to wit, individual autonomy, human dignity, sanctity of
life, and protection of the vulnerable – to justify their position pro or contra
assisted suicide (Schuklenk et al, 2011). As Rawls has taught us, persistent
disagreement about values is “a permanent feature of the public culture of
democracy”, not likely to wither away any time soon (Rawls, 1989: 246).
Similarly, “we should not wish away the fact that we find ourselves living and
acting alongside those with whom we do not share a view about justice, rights
or political morality” (Waldron, 1999: 102).
Besides disagreements grounded in competing interests or values, there
exists a third important source of persistent disagreement. Even where an
“overlapping consensus” about the foundational values is in place (to put it in
5
On value disagreement in general, see Rawls (1993); Waldron (1999); McMahon (2009); and 7
Valentini (2013).
Rawlsian terms) and where people share similar interests, they may still hold
radically different factual beliefs, resulting in “disagreement about matters of
empirical fact” (McMahon, 2009: 9-18). In public health many examples readily
spring to mind. Consider, for instance, the belief that childhood immunization
might be a contributing factor in the development of autism, which following
the infamous Wakefield study persists amongst many parents despite the bulk 8
of epidemiological research showing no scientific evidence to support such a
causal link (Doja and Roberts, 2006). Another example would be the slippery-9
slope argument against allowing physician-assisted suicide: in this case both
parties agree to disagree as it were on a matter of empirical fact, namely
whether the legalization of assisted suicide would result in some vulnerable
individuals or groups – e.g., old age or severely disabled patients – being
pressured into taking their own lives (Schuklenk et al, 2011). 10
Public health controversies resulting from factual disagreements are
importantly different from those based on interest or value conflict. When it
comes to factual or empirical matters, the presumption is that, ceteris paribus,
6
The study, led by Andrew J. Wakefield, was published in The Lancet in 1998 but fully retract8 -ed in 2010, and Wakefield found guilty of serious professional misconduct by the General Med-ical Council.
“A suggested association between certain childhood vaccines and autism has been one of the 9
most contentious vaccine safety controversies in recent years. Despite compelling scientific evi-dence against a causal association, many parents and parent advocacy groups continue to sus-pect that vaccines, particularly Measles-Mumps-Rubella (MMR) vaccine and thimerosal-contain-ing vaccines (TCVs), can cause autism” (DeStefano, 2007: 756).
The fact that the slippery slope argument often masks deeper underlying value disagreements 10
is irrelevant. Once committed to this line of argument, the point is one of empirical fact.
everyone holds an interest in reaching the correct answer. Independent of which
values one holds or which interests one has, the relevant facts must be present
for an individual to be able to instantiate those values or pursue those interests.
This means every person has a presumptive interest in their beliefs to
correspond as much as possible to true facts. Equally, moving things a step up
the regulatory ladder, every person emphatically has a strong interest in
ensuring that those governing policy are guided by the best possible knowledge
or evidence about factual matters.
Like the previous two types, persistent factual disagreements are pervasive
and not likely to disappear anytime soon. But the underlying shared interest in
resolving disagreement is significantly different from conflict driven by
competing interests or opposing values. This immediately brings us to the
question of who should arbitrate between the competing belief sets that inform
persistent factual disagreement. The customary answer to this question either
points at the legislative assembly or an expert body, such as the scientific
community. The argument in favour of the legislative assembly trades on the
epistemic power of large numbers, as expounded by the well-known Condorcet
Theorem (Goodin, 2005). The argument in favour of the latter is to emphasize
the superior epistemic competence of expert decision-makers in complex areas
such as public health.
What about the courts? At face value, judicial intervention fares rather
poorly on either of the arguments above. On the one hand, as has been pointed
out regularly by the critics of judicial review, courts merely engage in majority
7
rule decision-making but then with extremely small numbers (Waldron, 1999,
2006). This means the epistemic power of large numbers does not apply to
judicial decision-making. On the other hand, while judges are experts in the law,
they typically don’t have the necessary background or knowledge to compete
with public health experts. This would suggest courts are perhaps not the best
policy-makers when arbitrating on public health controversies. My purpose in 11
this article is to partially vindicate the role of the courts in resolving public
health disputes based on factual disagreements. But before putting the case for
judicial intervention, I briefly review a specific complaint lodged against the
competence of judges to adjudicate social problems.
!Judicial Competence and Polycentricity
The traditional view of the judiciary is one of an impartial adjudicator between
bilateral disputes where the affected parties present reasoned arguments and
evidence in support of their claims (Fuller, 1978: 365; on evidence more
generally see Twinning, 2005; 2006). In this model, the chief task of the courts
and other adjudicative agencies is to resolve the grievances of individual
litigants, and only to actively intervene in the case where legislation leaves
“interpretative gaps”. This model offers an ill fit with the increased recognition
of fundamental positive rights in legal systems, including rights that address
public health concerns. But the underlying point, often expressed in the form of
Fuller’s “polycentricity problem”, is worth exploring in a little more detail.
8
See Horowitz (1997) on courts as policy-makers more generally.11
For Lon Fuller, a problem arises in legal adjudication because certain
issues or problems are deemed “inherently unsuited for adjudicative disposition”
and “fall beyond the proper limits of adjudication” (Fuller, 1978: 354). These are
matters where the competence of courts is in doubt, and thus best left to the
legislature, planning boards, or other public institutions. The problem is not
merely one of judges lacking the technical competence, information and
specialization required to fully evaluate the relevant facts and evidence of
complex social issues such as those surrounding public health (Didcott, 1988).
Fuller’s objection cuts deeper and refers to the type or nature of conflicts
involved in public health matters.
Fuller introduced the problem of “polycentric” (“many centered”) situations,
which emerges in situations with many interacting points of influence (Fuller,
1978: 394-405). Fuller aptly visualizes this concept through the metaphor of a 12
spider web:
“A pull on one strand will distribute tensions after a complicated
pattern throughout the web as a whole. Doubling the original pull
will, in all likelihood, not simply double each of the resulting tensions
but will rather create a different complicated pattern of tensions.
This would certainly occur, for example, if the doubled pull caused
one or more of the weaker strands to snap. This is a ‘polycentric’
9
Fuller derives the concept of a “polycentric” task from Polanyi’s (1951) work on The Logic of 12
Liberty.
situation because it is ‘many centered’ −each crossing of strands is a
distinct center for distributing tensions” (Fuller, 1978: 395).
It is easy to see how many public health interventions will have such strong
polycentric features. Interventions at the population-level by their very nature
will be wide-ranging and differentially affecting subgroups, which is precisely
one of the reasons why public health interventions remain controversial.
For Fuller, these types of problem clearly fall outside the proper scope of
adjudication, a view apparently shared by those critical of judicial intervention
in public health today. Fuller’s reasoning is informed by his view that in the 13
adjudication form, the dominant mode of participation is in the form of
presenting reasoned arguments and evidence (Fuller, 1978: 363-365). But when 14
the participation of all the affected parties in the judicial decision-making
process is impossible, this results in “the relative incapacity of adjudication to
solve ‘polycentric’ problems” and even the destruction of “the integrity of
adjudication itself” (Fuller, 1978: 371; 364). In short, judicial intervention in
complex and wide-ranging matters, characterized by many interdependent
relations and a high probability of unforeseeable consequences that affect parties
10
See Cross (2000). See also Soobramoney v. Minister of Health, Kwa-Zulu-Natal (CCT32/97) 13
1997 ZACC 17, 1998 (1) SA 765 (CC), 1997 (12) BCLR 1696 (27 November 1997); opinion of Judge Chaskalson: 28-31.
Fuller distinguishes three basic forms of social ordering according to which decisions can be 14
made: contract, elections, and adjudication. What distinguishes each of these forms is the mode the participation of the affected party is regulated.
unable to participate in the adjudicative process, amounts to a perversion of the
judicial process. 15
There are two ways to respond to Fuller’s charge of polycentricity as
determining the limits of adjudication. The first builds on the recognition that
polycentricity is a pervasive feature that affects all areas of the law, and not
only those involved in the allocation of resources, such as public health law; a
point that Fuller had accepted. In his study of the pervasiveness of
polycentricity in law, Jeff King observes many examples – e.g., in tax law –
where the polycentric properties of a social problem are not worsened by judicial
intervention (King, 2008: 101). In addition, King’s analysis shows that “the 16
idea of polycentricity cannot presently be relied upon without serious
contradiction to justify judicial restraint in public law. Judges and scholars will
need either to abandon the doctrine, recast it in a more defensible form, or
radically change the role of adjudication in contemporary legal practice” (King,
2008: 128; also King, 2012). 17
11
Fuller (1978, 401) writes: “First, the adjudicative solution may fail. Unexpected repercussions 15
make the decision unworkable; it is ignored, withdrawn, or modified, sometimes repeatedly. Sec-ond, the purported arbiter ignores judicial properties −he “tries out” various solutions in post-hearing conferences, consults parties not represented at the hearings, guesses at facts not proved and not properly matters for anything like judicial notices. Third, instead of accommodating his procedures to the nature of the problem he confronts, he may reformulate the problem so as to make it amenable to solution through adjudicative procedures”.
King (2008: 123-124) holds that in such type of cases “courts are often willing to take a harder 16
look at the facts, possibly introduce a strained construction, or apply an open-textured concept such as ‘unfairness’ in the context of judicial review”.
The idea of judicial intervention itself has evolved with the recognition in legal systems of 17
human rights and the development of constitutional law. Fuller’s view may simply no longer reflect the adjudication process in current legal institutions. See Sturm (1991: 1355-1446); King (2008).
A second promising avenue is to point out that polycentricity is not
restricted to adjudication only. Fuller recognized that situational complexity
does not disappear or diminish in intensity when legislators and administrators
– who all face the familiar informational constraints and bounded rationality
(Simon, 1991) – are tasked with making decisions on polycentric issues: “the
majority principle is quite incapable of solving polycentric problems” (Fuller,
1978: 399-400).
This is perhaps most obviously the case when legislators or bureaucrats
rely on outside experts to tell them the truth of the matter. There are many
ways in which the results of expert research is biased or skewed towards a
particular policy prescription (Goldman, 2001). Sam Harper, Nick King and
colleagues, in a study focused on the distinction between absolute and relative
measures of health inequalities, illustrate why it is crucially important to
appreciate that “normative judgment is integral to some of the most basic
decisions underlying the measurement of health inequalities” (Harper et al, 2010:
5). It is worth considering the following example at length:
“Zhang and Wang (2004) reported the respective prevalence of
obesity among adult males with low versus high education as 13.8
percent and 8.6 percent between 1976 and 1980, and 24.1 percent and
17.1 percent between 1988 and 1994. In this case the rate difference
between education groups increased from 5.2 percent to 7 percent,
but the rate ratio declined from 1.60 to 1.41. If one considers the rate
12
of change exclusively, the less educated did better, since their relative
increase in obesity was 75 percent, compared with 99 percent for the
more educated. Yet if one considers the absolute level of obesity, the
less educated rose by 10.3 percentage points, compared with 8.5
points for the more educated. If we consider only the rate ratio—
again implicitly endorsing the position that equality matters most—
then we must conclude that educational inequalities in obesity are
decreasing and that we are making progress toward health equality.
However, if we consider the rate difference—implicitly endorsing the
position that inequality matters but it is not all that matters—we
would conclude that inequality is worsening in this case because the
absolute increase in the rate of obesity has been greater for the
disadvantaged.” (Harper et al, 2010: 10)
!Health inequalities can be plausibly expressed in absolute or relative terms, but
which of these measures is used will nevertheless suggest different policy
recommendations. Policy-makers unfamiliar with the fact that the choice of
measures is not merely a technical decision will end up resolving factual
disagreements about what the evidence really shows in favor of a policy
benefiting one group over another. In Fullerian terms, part of what goes wrong
in this process is the lack of participation by those who are affected by the
decision. Reliance on apparently neutral expert evidence does not mean
legislators or bureaucrats can avoid the trappings of a polycentric social
13
problem. In this respect too courts and assembly have more in common than
often acknowledged, and perhaps we ought to take a more forgiving attitude
towards judicial intervention. 18
!Reconsidering the Role of the Judiciary
The judicial legitimacy problem (Syrett, 2013) is typically couched in terms of
the problematic role of the judiciary in deciding normative disagreements (Fuller
1979; Breyer 1986; Didcott 1988; Waldron 1998, 1999, 2006; Tushnet 1999;
Cross 2000; Daniels and Sabin 2008). But the main concern of this article is
with factual disagreements, which I have argued have a significantly different
normative structure. In the remainder of this article I briefly outline four
grounds for the continued relevance of judicial intervention in public health
controversies grounded in factual disagreements. My arguments do not assume
that current judicial institutions are perfect or do not require significant reform;
my aim is merely to point at some social costs involved in restricting the scope
of judicial intervention.
!!
14
In his classic study Horowitz (1977: 20) already observed that “there is somewhat less institu18 -tional differentiation today than two decades ago. There is now more overlap between the courts and Congress in formulating policy and between the courts and the executive in both formulat-ing and carrying programs. That is, the types of decisions being made by the various institu-tions -their scope and level of generality- seem to be converging somewhat, though the processes by which the decisions are made and the outcomes of those processes may be quiet different […]. Thus, to say that there is convergence in the business of courts and other institutions is not tan-tamount to saying that it makes no difference who decides a question. On the contrary, it mat-ters a good deal, for the institutions are differently composed and organized”.
Judges are appointed, not elected
A common critique of judicial review is that judges are unelected, which means
their power to counter legislative decisions through strong judicial review is
undemocratic and illegitimate. This argument makes sense (as far as it goes)
when the relevant disagreement concerns competing interests or value conflicts.
When the disagreement concerns empirical facts, on the other hand, this
property may turn out to be an advantage.
Politicians are electorally accountable and thus obligated to further the
interest of their constituents (Mansbridge, 2003). In addition, seeking reelection
politicians have strong incentives to favor the position that maximizes voter
approval or face electoral sanctions (Mansbridge, 2009). Courts are neither
elected nor representative institutions and are relatively independent from a
specific constituency (but see Hirschl, 2007). In the classic version of the
division of powers, the main purpose of the judiciary is precisely to serve as a
counter-power to legislative and executive direction (Hoffman, 2002; Pettit,
1999, 2012). There is little concern about the corrupting influence that electoral
campaigning might have on a judge’s impartiality, for instance. Pettit writes:
“Where those elected to government may have an interest in securing
reelection by satisfying their particular backers, for example, those
involved in review will usually have quite different […] incentives.
They may be free of self-serving interests and be all the more
susceptible to considerations of fair play […] or they may have an
interest in enhancing their reputation as knowledgeable and even-
15
handed among their professional colleagues or in the community at
large” (Pettit, 1999: 181-182; also Pettit, 2012).
Appointed for life, judges typically do not need to make strategic decisions that
will secure their position in the future. 19
This line of argument has been challenged from a rational choice by
Richard Posner, who maintains that the judiciary should be conceived as
composed of “ordinary people responding rationally to ordinary
incentives” (Posner, 1993: 1). In The Behavior of Federal Judges, Epstein,
Landes and Posner (2013) elaborate along similar lines how judges, who ought
to be considered agents of the government, are both motivated and constrained
by benefits and costs. Benefits to which a rational judge would respond include
income as well as non-pecuniary benefits such as power and prestige while
adverse working conditions and the value of leisure foregone operate as rational
constraints (Epstein, Landes and Posner, 2013: 7-8). Thought-provoking though
it may be, not everyone finds the “judicial utility model” accurately reflecting
what goes on behind the judges’ robes (Jubilerer, 2013). Most importantly, the
model does not invalidate the fact that judges face a different set of
opportunities and constraints from elected representatives, which most obviously
explains why judges are not required to charm people’s support or cozy up to
(corporate) special interests to continue in their positions. Judicial institutions,
16
Here we have to distinguish the European constitutional model, with a Constitutional Tri19 -bunal as the interpreter of constitutional provisions, from the American constitutional model. Members of a Constitutional Tribunal may only be appointed for a limited time.
qua institution, are structured to function differently from other state
institutions.
!Commitment to evidence
When legislators or public administrators gather information and evidence from
about the effects or cost-effectiveness of a policy, they often rely on experts
funded or otherwise linked with influential corporate interests. This is most
certainly the case in health policy and public health, with both Big Pharma and
Big Tobacco standing out. Consequently, the information and evidence
supporting particular decisions may fail to satisfy the requirements of
procedural justice (Syrett, 2011), including the demands of transparency and
accountability (Mitton et al., 2006.).
Elected officials may be aware of the extraordinary influence of
“informational lobbying”, but typically have few incentives – if any – to seek out
alternative information. Judges, by contrast, are oriented to seeking out
information the opposing sides in any disagreement. Moreover, judges are not
committed in advance to favoring a particular side but instead focused on
letting the evidentiary chips lie where they fall. Courts are thus well-suited to
adjudicate cases of factual disagreement that crucially depend on unearthing
relevant evidence about controversial facts.
In practice, most judicial systems incorporate specialized tribunals to
deal with particularly complex social problems, such as labor or human rights
tribunals. Keith Syrett (2013: 7) observes, pace those lamenting the lack of
17
judges’ health expertise, that “there seems no particular reason why
epidemiological and health economic evidence should be less susceptible to
admission and consideration in court, save perhaps for the relative newness
(and, hence, unfamiliarity).” For instance, United States federal judges were
appointed as “special masters” in three test cases to rule on the question of
whether early childhood immunization was a contributing factor in autism. 20
The claimants demanded compensation on the grounds that a combination of
vaccines containing the mercury-based preservative thimerosal (TCVs,
thimerosal-containing vaccines) administered to their children in the first year,
and the measles, mumps and rubella (MMR) vaccine after 12 months
contributed to the development of autism (Stewart, 2009). The examination of
the autism controversy through specialized “vaccine courts” has one clear
advantage. Whereas hearings set up by the Medical Research Council in the UK
or the Institute of Medicine in the USA sought to include parents and lay
interests in their proceedings, the terms of the discussion were clearly set by
scientists and medical authorities. This offers a marked contrast with the expert
witnesses in the vaccine courts, who are obliged “to present their evidence to
judges who have no particular scientific expertise: the standard is that of the
18
The cases are known as the “Omnibus Autism Proceedings”: 1) Michelle Cedillo v. Secretary 20
of Health and Human Service, Case N. 98-916V, was heard by George L. Hastings in Washing-ton, DC, in June 2007; 2) William Yates Haslehurst v. Secretary of Health and Human Service, Case N. 03-654V, was heard by Particia E. Campbell-Smith in Charlotte, North Caroline in Oc-tober 2007; and 3) Coltern Snyder v. Secretary of Health and Human Service, Case N. 01-162V, was heard by Denise K. Vowell, in Orlando, Florida, in November 2007. On February 12, 2009, in simultaneously published judgments, all three judges rejected claims that vaccination caused autism in these children.
intelligent, objective, observer” (Fitzpatrick, 2009: 4). Although courts are
appropriately respectful of medical professional opinion, there is no need to
display blind deference (Syrett, 2013), for “there are questions related to medical
practice that naturally fall within the comprehension of the layman” (Lord
Woolf, 2001: 7; also Syrett 2004, 2008, 2011).
Further, the traditional portrayal of clinical decision-making as an
“essentially intuitive exercise of judgment in response to the particularities of
individual cases may now be outdated as a consequence of the impact of
evidence-based medicine (EBM)” (Syrett, 2013: 4). This new paradigm relegates
competent clinical judgment to third place – randomized controlled trials and
observational studies – in the ranking of grounds for medical decision-making
(Howick, 2011: 5). Since the adjudicative function is based on the review and
assessment of evidence placed before the court, EBM as a form of decision-
making “sits much closer to judicial reasoning than does ‘traditional’ clinical
judgment” (Syrett 2013: 5). For Syrett (2013: 5), “this is not to claim that
scrutiny of clinical decisions based upon evidence will be straightforward for a
judge; there is likely to remain a deficit of knowledge arising from the ‘technical’
character of some of the methodologies which are utilized in EBM”. This is
merely a call for the judiciary to be restructured in a way to overcome these
difficulties (Syrett, 2013: 4, 8), for instance by incorporating the dialogical
approach in legal systems (Gargarella, 2006; Bateup, 2005, 2009; Dixon, 2007). 21
19
The Canadian legal system is regularly framed as one where the genuine dialogue between the 21
public institutions of the judiciary and the legislator takes place.
!Judicial reasoning
Reasoned debate within the legislator is constrained by time and the need to
make many political decisions at the same time. This affects the epistemic
status of legislative reasoning insofar as it is based on the Condorcet jury
theorem. First, the Condorcet jury theorem may work at the level of political 22
representatives deciding on policy provided they are allowed to freely express
their vote, but this is rarely the case in most political systems. Canadian
representatives, for instance, are expected to vote along party lines, with the
party line on a particular being set by a small number of individuals. Second,
policy-making typically takes place in committees, which again boils down to a
small number of people sorting through evidence and writing summary reports
to subsequently inform the relevant minister or the cabinet. With the epistemic
superiority of the legislature thus compromised, we should reconsider the merits
of judicial reasoning for factual disagreements.
The judicial process operates by searching for, citing, assessing, and
comparing the weight of factual evidence in order to adjudicate a particular
disagreement. A key object of the judiciary is to distinguish between opinion
and fact. “The explanation for a conflict in medical opinion is frequently based
on a different interpretation of the underlying facts. It is always the courts and
not an expert’s task to find the facts. This is so even if it is necessary to have
20
The Condorcet theorem states that the probability for a majority to make correct decisions 22
increases significantly with group size, where each individual on average has more than 0.5 probability of being correct (Goodin, 2005).
expert evidence in order to interpret the facts” (Lord Woolf, 2001: 11.). Against
a background of politicians customarily adopting decisions based on the advise
of specialized agencies, one of the objectives of the courts “is to ensure that the
agency is in possession of information which it might not otherwise have
acquired and that it is thus able to make a balanced and, as far as possible,
‘correct’ decision based upon full knowledge of all relevant facts” (Syrett, 2011:
484.).
We should consider a final point. In a democratic society, it would be
“unwise to place any profession or other body providing services to the public on
a pedestal where their actions cannot be subject to close scrutiny”. As Lord
Woolf correctly reminds us, we ought not to forget “why the appellate system
within the courts and the fact that the judiciary administer justice under the
cleansing scrutiny of the public are so important” (Woolf, 2001: 15). Each ruling
requires judges to give reasons that shine public light on how they evaluated
and weighted the evidence introduced in the procedure, which adds an
important quality dimension to judicial reasoning.
!An additional voice for the people
In a modern democracy elected representatives typically represent the interest of
the democratic majority. Modern democracies nonetheless also value
opportunities for the minority to have its voice heard. As is illustrated by the
case of PHS, pertaining to safe injection sites for drug users, the judicial process
opens up a channel for marginalized individuals and groups or minorities to
21
contest political decisions. The courts effectively introduce an additional mode
of access for individuals’ input into the policy process.
In addition to the epistemic value of an increased probability of reaching
a correct interpretation on disputed facts, judicial intervention promotes the
value to marginalized minorities of having their position impartially assessed –
boosting procedural fairness (Rawls, 1971; Pettit, 1999: 182). This is an
important point because it is not the potential favorable outcome that gives
judicial review profound extrajudicial effects, as many have argued (Bryden,
1987; Pettit, 1999, 2012; Gargarella, 2006; Bellamy, 2007; but see Hirschl 2007:
149-168 for the opposing view.). On the contrary, procedural fairness makes the
process acceptable even when it delivers unwelcome outcomes (Pettit, 1999:
182).
The vaccine courts example discussed in a previous section illustrates this
last point well. “Parents who attribute their children’s autism to vaccines often
claim that they – and the scientists and doctors who support their conviction –
have been denied a public hearing. The vaccine courts allowed their voices, and
those of their legal representatives and supportive experts, to be heard and to
be interrogated” (Fitzpatrick, 2009: 4-5). Similarly, in the Carter case (assisted
suicide), Ms. Carter and Ms. Taylor were granted the opportunity to have their
arguments heard and carefully examined; whatever the outcome of the case, this
mode of participation is deemed very important.
22
Philip Pettit stresses a related point when putting forward his ideal of a
contestatory democracy: it may well be that “the original decision-makers in the
legislature or administration had the incentive and the opportunity to ignore the
avowable, perceived interests of a certain minority. But it is unlikely that the
reviewing agency will have the same opportunity and the same
incentive” (Pettit, 1999: 181). The implication here is that the judicial process
opens a channel of contestation for people who are otherwise denied an
opportunity to have their voice heard.
Courts may decide to review evidence from a variety of groups,
organizations or associations who each claim to represent individuals affected by
the judicial decision. This is a way to broaden participation in the judicial
process through “wide publ ic consultation” or “publ ic interest
intervention” (Syrett, 2011, 2013). This type of intervention may bring further
benefits, including the benefit of “listening” to alternative points of view. Finally,
courts may promote broad societal debate through exposing allocative choices
and other policy measures to wider public scrutiny, along the way facilitating a
process of “social learning” (Syrett, 2011). Needless to say, actual judicial
systems may require substantial reform for the courts to effectively grant an
23
additional voice to the people, but this requires building on rather than ignoring
the potential of the judiciary. 23
!Conclusion
!Courts play a key role in deciding on public health controversies, but the
legitimacy of judicial intervention itself remains highly controversial. In this
article I suggest that we need to carefully distinguish between different reasons
for persistent disagreement in the domain of public health. I argue that factual
disagreements constitute a separate class of conflicts. Adjudicating between
public health controversies rooted in factual disagreements allows us to
investigate more closely the epistemic capacities of the judicial process. While
critics typically point out the lack of appropriate expertise of judges – in
particular with respect to health and public health – we should not move too
fast in concluding from this a generalized competence problem. The article
concludes by outlining four different reasons why we should give due
consideration to the role courts can play when “taking facts seriously” in public
health.
24
Roberto Gargarella, for instance, argues we need to distinguish four key stages in the judicial 23
process: “the ability of groups whose rights are violated to articulate their claims and voice them in the legal system; the responsiveness of the courts at various levels to social rights claims once voiced; the capacity of judges to respond to claims – that is, their ability to find adequate means to give effect to social rights; and whether the social rights judgments that are handed down are authoritative, in the sense that they are accepted, complied with and implemented through legislation and executive action” (Gargarella, 2006: 263).
!Bibliography
Bateup, Christine (2005). ‘The Dialogic Promise: Assessing the Normative Potential of Theories of Constitutional Dialogue’. Brooklyn Law Review. 71: 1109-1120.
Bateup, Christine (2009). ‘Reassessing the Dialogic Possibilities of Weak-Form Bills of Rights’. Hastings International and Comparative Law Review, 32(2): 529-599.
Bellamy, R. (2007). Political Constitutionalism. Cambridge: Cambridge University Press.
Bryden, P. (1987). ‘Public Interest Interventions in the Courts’. Canadian Bar Review, 66: 490-509.
Cross, F. (2000). ‘The Error of Positive Rights’. UCLA Law Review 48: 857-924. Daniels, N. and J. Sabin. (2008). Setting Limits Fairly. New York: Oxford
University Press, 2nd ed. DeStefano F. (2007). ‘Vaccines and autism: evidence does not support a causal
association’. Clinical Pharmacology and Therapeutics, 82(6): 756-759. Didcott, J. (1988). ‘Practical Workings of a Bill of Rights’, in J. Van der
Westhuizen y H. Viljoen (eds.) A Bill of Rights for South Africa. Durban: Buttersworth.
Dixon, Rosalind (2007). ‘Creating Dialogue About Socioeconomic Rights: Strong-form Versus Weak-form Judicial Review Revisited’. International Journal of Constitutional Law, 5(3): 391-418.
Doja A. and W. Roberts (2006). ‘Immunizations and autism: a review of the literature’. Canadian Journal Neurological Science, 33(4): 341-346.
Posner, R. (1993). ‘What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does)’. Supreme Court Economic Review, 3: 1-41.
Epstein, L., W. Landes and R. Posner (2013). The Behavior of Federal Judges. A Theoretical and Empirical Study of Rational Choice. Harvard: Harvard University Press.
Fuller, L. (1978). ‘The Forms and Limits of Adjudication’. Harvard Law Review, 92(2): 353-409.
Gargarella, R. (2006). ‘Theories of Democracy, the Judiciary and Social Rights’, in R. Gargarella, P. Domingo, y T. Roux (eds.) Courts and Social Transformation in New Democracies: An Institutional Voice for the Poor? London: Ashgate, pp. 13-34.
Goldman, A. ‘Experts: Which Ones Should You Trust?’ Philosophy and Phenomenological Research, LXIII(1): 85-110.
25
Goodin. R. (2005). Reflecting Democracy. Oxford: Oxford University Press. Holland, S. (2007). Public Health Ethics. Cambridge: Polity Press. Fuller, L. (1978). ‘The Forms and Limits of Adjudication’. Harvard Law Review,
92(2): 353-409. Harper S., N. King, et al. (2010). ‘Implicit Value Judgments in the Measurement
of Health Inequalities’. The Milbank Memorial Quarterly, 88(1): 4-29. Hirschl, R. (2004). Towards Juristocracy: The Origins and Consequences of the
New Constitutionalism. Cambridge, MA: Harvard University Press. Horowitz, D. (1977). The Courts and Social Policy. Washington: The Brooking
Institution. Howitz, J. (20110. The Philosophy of Evidence-Based Medicine. Oxford: Wiley-
Blackwell. King, J. (2008). ‘The Pervasiveness of Polycentricity’. Public Law, 101-124. King, J. (2012). Judging Social Rights. Cambridge: Cambridge University Press. Lord Woolf (2001). ‘Are the Courts Excessively Deferential to the Medical
Profession?’ Medical Law Review, 9: 1-16. Mansbridge, J. (2003). ‘Rethinking Representation’. American Political Science
Review, 97(4): 515-528. Mansbridge, J. (2009). ‘A “Selection Model” of Political Representation’. The
Journal of Political Philosophy, 17(4): 369–398. McMahon, C. (2009). Reasonable Disagreements. A Theory of Political Morality.
Cambridge: Cambridge University Press. Mitton, C., M. McMahon, S. Morgan, and J. Gibson (2006). ‘Centralized drug
review processes: are they fair?’ Social Science and Medicine, 63: 200-211. Opel, D. et al. (2014). ‘A 6-Month-Old with Vaccine-Hesitant Parents’.
Pediatrics, 133(3): 526-530. Pettit, P. (1999). ‘Republican freedom and contestatory democratization’, in I.
Shapiro and C. Hacker-Cordon (eds.) Democracy’s Value. Cambridge : Cambridge University Press, pp. 163-190.
Pettit, P. (2012). On the People’s Terms: A Republican Theory and Model of Democracy. Cambridge: Cambridge University Press
Rawls, J. (1971). A Theory of Justice. Cambridge: The Belknap Press of Harvard University Press.
Rawls, J. (1989). ‘The domain of the Political and Overlapping Consensus’. New York University Law Review, 64(2): 233-255.
Rawls, J. (1993). Political Liberalism. New York: Columbia University Press. S imon , H . (1991) . "Bounded Rat iona l i ty and Organ i za t i ona l
Learning". Organization Science, 2(1): 125–134.
26
Stewart, A. (2009). ‘When vaccine injury claims go to court’. The New England Journal of Medicine, 360(11): 2498-2500.
Sturm, S. (1991). ‘A Normative Theory of Public Law Remedies’. Georgetown Law Journal, 79: 1355-1446.
Syrett, K. (2004). ‘Impotence or Importance? Judicial Review in an Era of Explicit NHS Rationing’. The Modern Law Review, 67(2): 289-304.
Syrett, K. (2008). ‘NICE and judicial review: enforcing “Accountability for Reasonableness” through the courts?’ Medical Law Review, 16: 127.
Syrett, K. (2011). ‘Health Technology Appraisal and the Courts: Accountability for Reasonableness and the Judicial Model of Procedural Justice’. Health Economics, Policy and Law, 6: 469-488.
Syrett, K. (2013). ‘Courts expertise and resource allocation: is there a judicial “legitimacy problem”?’ Public Health Ethics Advance Access published December 5, 2013, doi:10.1093/phe/pht040.
Twinning, W. (2005). Analysis of Evidence. 2nd edition, with T. Anderson and D. Schum. Cambridge: Cambridge University Press.
Twinning, W. (2006). Rethinking Evidence: Exploratory Essays. Cambridge University Press.
Valentini, L. (2013). ‘Justice, Disagreement and Democracy’. British Journal of Political Science, 43(1): 177-199.
Waldron, J. (1998). ‘Judicial Review and the Conditions of Democracy’. Journal of Political Philosophy, 6(4): 335-355.
Waldron, J. (1999). Law and Disagreement. Oxford: Oxford University Press. Waldron, J. (2006). ‘The Core of the Case against Judicial Review’. The Yale
Law Journal, 115(6): 1346-1406.
27